The moment of truth

Professor of Constitutional LawEver since the results of the December 21st elections came out, it became apparent that the moment of truth would come with the investiture of the President of the Generalitat. The election of a president was already extremely complicated in the previous term, and a repetition of the elections was only avoided when Artur Mas stepped aside. This time, the operation is much more complicated, as now the investiture is not dependent on the position of one of the political forces, the CUP, but rather on Spain’s Supreme Court's intervention in the process, as confirmed recently by the Constitutional Court.

The pro-independence bloc, which won the elections in the parliamentary sense but not in the sense of a plebiscite --to use the terminology that they themselves put into circulation--, finds itself faced with the dilemma of either proposing a candidate that the Supreme Court will have no objection to or, rather, proposing one that not only is being investigated but is also subject to the most serious cautionary measure provided for in the legislation: unconditional provisional imprisonment.

The first option would have a certain advantage. It would immediately lift Madrid’s direct rule, it would restore the exercise of autonomy under the terms laid out in the Constitution and Statute of Autonomy, and the President of the Generalitat would be able to politically direct the autonomous community. It would be the option most consistent with the principle of legality. Nevertheless, it would also have the no-less certain disadvantage that the citizens would not be the ones who, through their voting rights, had chosen the president, but rather the Supreme Court that had decided the investiture, albeit negatively. From the perspective of democratic legitimacy, it is a much less coherent option. We would once again find ourselves faced with the tension between legality and legitimacy that has shadowed the entire course of the Catalan independence process. The Spanish government maintains that legitimacy and legality coincide in a democracy. The pro-independence movement believes that the right to autonomy cannot be exercised in accordance with a Statute that was not what the people approved in referendum, but rather that which was imposed by the State via the Constitutional Court as a result of an appeal by the PP. The exercise of the right to self-rule requires that the principal legislation, the Catalan Statute, be a law in which the people have had the final word. This is an unavoidable condition of the principle of democratic legitimacy. With the current Statute, this is not the case.

A complaint for neglect of duty

The response to this logic of democratic legitimacy is the proposal to name Jordi Sànchez* as candidate for president. It is about keeping alive the tension between legality and legitimacy, which will put the Supreme Court in a very awkward position. If the Speaker of the Catalan Parliament, after a round of talks, proposes Jordi Sànchez as candidate, the Court cannot block him from attending Parliament to present his platform for governance and seeking the support of the chamber. Sànchez still has the right to passive suffrage, and this right cannot be ignored by the Court. In fact, Pablo Llarena would be committing a crime of wilful neglect of duty and Sànchez would be able to file a complaint against him.

If Sànchez is the candidate, he will be voted president and the presiding judge will then have to decide whether to keep a President of the Generalitat in provisional custody. In my view, if this were to happen, an appeal could immediately be lodged with the Constitutional Court, requesting a provisional suspension of the measure. And in the case that the high court did not agree to process the appeal, it is my understanding that he could turn to the European Court of Human Rights. And if Sànchez isn't kept in provisional custody, what about the other pro-independence politicians subject to this precautionary measure?

The judicialization of a problem as intrinsically political as that of the integration of Catalonia within Spain not only resolves nothing, but rather will make everything more difficult. To attempt to have a court of law resolve what it can never resolve will lead nowhere but to catastrophe.

----------

*Jordi Sànchez is a political activist and President of the Catalan National Assembly. He is currently being held in prison without bail, accused by Spanish authorities of sedition for organizing the September 20, 2017 protests and for preparations for the October 1st referendum.